A Kentucky lawmaker's proposal would shield records from the public that detail certain information about businesses seeking incentives from the state.

Critics say the move would severely limit citizens' access to information about the government's dealings with private companies.

House Bill 387 would block certain records from public disclosure that include financial information, the identity of a company's shareholders and present or future business plans.

Filed by Rep. Jason Petrie, R-Elkton, the bill would also exempt records concerning proposed economic development incentives, such as tax breaks, that don't end up approved and finalized.

Petrie said the legislation — which the Kentucky Cabinet for Economic Development was directly involved in developing — is meant to help ensure Kentucky can successfully court new business investments in the state.

"I’m trying to make sure we’re not putting ourselves at a competitive disadvantage," he said.

However, the Kentucky Press Association opposes the bill, saying it would "increase the likelihood of self-dealing, mismanagement, and short-sightedness by all public agencies engaged in economic development."

The association said the bill is directly related to two ongoing court cases over whether the public should legally have access to certain records pertaining to Amazon, the online shopping juggernaut, and Braidy Industries, a private company that plans to build a $1.7 billion aluminum rolling mill in Eastern Kentucky and received a $15 million direct investment from the state government in 2017.

"As companies, like Braidy and Amazon, become more direct in their attempts to secure tax incentives and public funds, the law must respond by affording the public with enhanced oversight of its public officials.

"Instead, the state’s political leaders chafe at the prospect of being held accountable to the public and attempt to rewrite the law to permit them to operate in the dark in the future," the KPA said in a statement this week.

The Courier Journal is involved in both the Amazon and Braidy Industries-related court cases.

The Amazon case pertains to the Courier Journal's request for the full proposal the city of Louisville submitted during Amazon's search for a location for its second headquarters.

The Courier Journal sued the city of Louisville in 2018 after the administration of Mayor Greg Fischer, a Democrat, refused to release the city's entire Amazon headquarters offer, which wasn't selected as a finalist. A judge ordered those records to be publicly released in September, but the matter is currently being appealed.

The Braidy Industries case concerns records the Courier Journal has been seeking that identify some investors in Braidy. The economic development cabinet appealed a decision by Attorney General Andy Beshear, a Democrat currently running for governor, who determined that the records are subject to public disclosure.

Braidy Industries publicly identified several shareholders in December 2017. Then, last year, Franklin Circuit Court Judge Phillip Shepherd said the state cannot withhold records identifying Braidy's shareholders, but the cabinet appealed his ruling. The case is still making its way through the appeals process.

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The community of Ashland, Kentucky, looks forward to Braidy Industries building an aluminum plant nearby that may boost the economy.
Sam Upshaw Jr./Louisville Courier Journal

The KPA maintains there is a direct connection between House Bill 387's proposed changes to open records requirements and the Amazon- and Braidy-related cases.

"The bill was written by members of Gov. Matt Bevin’s administration in the Cabinet for Economic Development and is a direct attempt by the administration to undermine two recent court decisions ordering disclosure of public records," the KPA said.

Economic development cabinet spokesman Jack Mazurak said the Braidy and Amazon cases are indicative of the changing nature of state's economic development work, which make these new legal exemptions necessary. But, he said, those cases aren't the reason for the proposed legislation.

The cabinet is committed to transparency, Mazurak said, but it also must strike a balance as it works to further its mission to attract new businesses and stimulate job creation in Kentucky.

The cabinet is working with private companies that expect and require privacy protections for the information they disclose when the state considers whether to grant economic incentives for their business ventures, Mazurak said.

And if other states or businesses can see what incentive packages Kentucky previously offered to different firms, the cabinet risks losing its "negotiating leverage," he said.

Amye Bensenhaver, a former assistant attorney general for Kentucky whose career has included a focus on open records and open meetings issues, said there are already exemptions in state law that protect certain information about private businesses from being publicly released.

Bensenhaver also said she is worried that HB 387 and other legislation some lawmakers have introduced in the recent past represent "a steady erosion" of the state's open records law.

"Their idea is that if we do this all in secrecy, it’s more apt to be a positive outcome for the commonwealth, and I adamantly disagree with that," she said.